1
[Note: refer to the Federal Court decision dated 8 April 2014 [2014] FCA 353 for result of
appeal.]
Fair Work Act 2009
s.604—Appeal of decision
Toni Reihana
v
Mastercare Highrise Cleaning Services Pty Ltd
(C2013/4765)
SENIOR DEPUTY PRESIDENT ACTON
DEPUTY PRESIDENT SAMS
COMMISSIONER MACDONALD MELBOURNE, 2 AUGUST 2013
Appeal against decision [[2013] FWC 3216] of Senior Deputy President Richards at
Brisbane on 27 May 2013 in matter number U2013/6439.
Introduction
[1] Mr Toni Reihana has given notice of appeal against a decision1 of Senior Deputy
President Richards refusing him an extension of time for the making of his unfair dismissal
remedy application under s.394 of the Fair Work Act 2009 (Cth) (FW Act) against Mastercare
Highrise Cleaning Services Pty Ltd (Mastercare).
Senior Deputy President’s decision
[2] In making his decision the Senior Deputy President set out the provisions of the
FW Act that the Fair Work Commission (FWC) is required to take into account when
deciding whether to allow a further period for the making of an unfair dismissal remedy
application. In this regard, s.394(3) of the FW Act provides as follows:
“(3) The FWC may allow a further period for the application to be made by a
person under subsection (1) if the FWC is satisfied that there are exceptional
circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had
taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay);
and
[2013] FWCFB 4960
DECISION
AUSTR FairWork Commission
http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2014/2014fca0353
[2013] FWCFB 4960
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(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
[2013] FWCFB 4960
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[3] The Senior Deputy President then dealt with the matters in s.394(3) as follows:
“Section 394(3)(a)
[7] The Applicant claims that he posted by ordinary surface mail an application for
an unfair dismissal remedy on 25 January 2013. However, he directed this application
to the Queensland Industrial Relations Commission.
[8] A delegate of the Industrial Registrar wrote to the Applicant on 29 January
2013 indicating that the Applicant’s correspondence had been received that day and
that he had made application to the wrong jurisdiction. The correspondence
informatively provided the Applicant with the online address for the Fair Work
Commission as well as providing the Commission’s telephone contact details.
[9] The Applicant claims that he would have received the correspondence of
29 January 2013 on 1 February 2013.
[10] Upon receipt of that correspondence the Applicant claimed that he ‘acted quick
smart’ to make an application to the Fair Work Commission. ‘My quick action’, so the
Applicant claimed further, meant that he was able to lodge the new application on
13 February 2013.
[11] The Applicant was able to provide no meaningful evidence that provided an
explanation as to why he did not set about sending by ordinary surface mail the
application to the Queensland Industrial Relations Commission before 25 January
2013. Even accounting for what he may have presumed to have been the 21 day time
limit applicable to applications in the former Queensland jurisdiction, the Applicant
was still effectively out of time in regard to that presumption on his part (if indeed he
actually held that presumption at any time).
[12] The Applicant did attempt to construct an argument that his application to the
Queensland Industrial Relations Commission was delayed by the intervention of a
number of public holidays (Christmas Day, Boxing Day, and New Year’s Day).
Despite this, again, the Applicant’s application to the State jurisdiction was not
received until 29 January 2013.
[13] This was not an application that was affected by the day on which an
application was due but where that day was a weekend or a public holiday (as set out
at s.36(2) of the Acts Interpretation Act 1901).
[14] Similarly, he was able to provide no meaningful explanation as to why a
further delay occurred between 1 February 2013 (if I accept the Applicant’s evidence
as to the date on which he received the correspondence from the Queensland Industrial
Relations Commission) and 13 February 2013 in making his application, finally, to the
Fair Work Commission - though in the Applicant’s own mind he claims to have acted
with all speed.
[2013] FWCFB 4960
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Section 394(3)(b)
[15] No issue arises in relation to the date or time at which the Applicant became
aware of his dismissal as opposed to when it took effect.
Section 394(3)(c)
[16] … On balance, it is sufficient to say that the Applicant held concerns about the
circumstances of his dismissal and indicated to the Employer that he would challenge
its conduct, in some regards at least.
Section 394(3)(d)
[17] The Employer’s claim was that it would be prejudiced by the application
essentially because it believes the application lacked any merit in substantive terms.
Other than that, the Employer did not demonstrate that it would in some demonstrable
manner be inconvenienced by providing for the application in another period of time
(outside the 14 day limitation), such as by the unavailability of witnesses, documents
having been lost etc.
Section 394(3)(e)…
[23] … The merits of the application therefore are of neutral effect on my overall
consideration.
Section 394(3)(f)
[24] There are no other employees whose circumstances were introduced in any
detail for the purposes of consideration in this matter.”
[4] His Honour concluded in respect of Mr Reihana’s application for an extension of time
for the making of his unfair dismissal remedy application as follows:
“Conclusion
[25] The Applicant was unable to provide any explanation of any substance for the
delay in his application for the period prior to making the application with the
Queensland Industrial Relations Commission. That application was not received by
the Queensland Industrial Relations Commission until 29 January 2013 (whereas the
Applicant’s dismissal occurred on 23 December 2012).
[26] Once having been informed that his application should have been made to the
Fair Work Commission, a period of eleven or twelve days lapsed until the application
itself is made. Though the Applicant claimed he “acted quick smart” in the
circumstances, that period of elapsed time is without substantive explanation.
[27] There are no exceptional circumstances evident in the Applicant’s evidence in
this respect.
[2013] FWCFB 4960
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[28] Nor are any of the other circumstances set out in the Applicant’s evidence
persuasive that there were exceptional circumstances relating to the delay in his
application for an unfair dismissal remedy.
[29] As a consequence I dismiss the application under s.394 of the Act and do not
provide for the application to be made in a further period of time under s.394(2)(b) of
the Act.”
Grounds of appeal
[5] In support of his appeal, Mr Reihana submitted that:
taking into account the notice of dismissal due to him, he was not legally
dismissed until 14 January 2013;
he thought the FWC would grant him an extension of time for the making of his
unfair dismissal remedy application because he was misled by the website for the
Queensland Industrial Relations Commission (QIRC) into making an unfair
dismissal remedy application to the QIRC on 29 January 2013, before he made his
unfair dismissal remedy application to the FWC on 13 February 2013;
there is 15 days between 14 January 2013 and 29 January 2013, meaning his
unfair dismissal remedy application was filed within the 21 days required by the
QIRC; and
the period under s.394(2)(a) for making an unfair dismissal remedy application
should not have started until he was advised that he had wrongly made an
application to the QIRC.
[6] Mr Reihana sought to introduce new evidence or information on appeal about the
notice of dismissal afforded to him by Mastercare, about his lack of preparedness for the
proceedings before Senior Deputy President Richards and about matters he thought he should
have presented, but did not present, to his Honour. That new evidence or information
concerned him being given payment in lieu of notice, him being overseas until a few days
before the proceeding, and his involvement in tenancy and associated matters, including
litigation, in the period leading up to and post his dismissal.
[7] Mastercare opposed the granting of permission to appeal. In doing so they confirmed
that Mr Reihana was dismissed shortly before Christmas 2012 and given payment instead of
any outstanding notice period to which he was entitled at the date of his dismissal.
Consideration
[8] Sections 604 of the FW Act states in respect of appeals:
[2013] FWCFB 4960
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“604 Appeal of decisions
(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or the Minimum
Wage Panel)…
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant
permission if the FWC is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see
section 400).
(3) A person may appeal the decision by applying to the FWC.”
[9] Section 607 of the FW Act states:
“607 Process for appealing or reviewing decisions
(1) An appeal from, or a review of, a decision of the FWC or the General Manager
may be heard or conducted without holding a hearing only if:
(a) it appears to the FWC that the appeal or review can be adequately
determined without persons making oral submissions for consideration
in the appeal or review; and
(b) the persons who would otherwise, or who will, make submissions
(whether oral or written) for consideration in the appeal or review
consent to the appeal or review being heard or conducted without a
hearing.
(2) The FWC may:
(a) admit further evidence; and
(b) take into account any other information or evidence.
(3) The FWC may do any of the following in relation to the appeal or review:
(a) confirm, quash or vary the decision;
(b) make a further decision in relation to the matter that is the subject of
the appeal or review…”.
[10] Section 400 of the FW Act, however, states:
“400 Appeal rights
(1) Despite subsection 604(2), FWA must not grant permission to appeal from a
decision made by FWA under this Part unless FWA considers that it is in the
public interest to do so.
[2013] FWCFB 4960
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(2) Despite subsection 604(1), an appeal from a decision made by the FWC in
relation to a matter arising under this Part can only, to the extent that it is an
appeal on a question of fact, be made on the ground that the decision involved
a significant error of fact.”
[11] The “Part” referred to in s.400 of the FW Act is Part 3-2 of the FW Act concerning
unfair dismissal.
[12] With respect to Mr Reihana’s application for us to admit or take into account new
evidence or information on appeal, s.607(2) of the FW Act concerning such evidence or
information was considered by a majority of a Full Bench of the then Fair Work Australia in
J.J. Richards & Sons Pty Ltd v Transport Workers’ Union of Australia.2 The majority in J.J.
Richards recognised that s.607(2) confers a discretion on a Full Bench hearing on appeal to
“admit further evidence” and “take into account any other information or evidence” and that
the principles governing the admission of fresh evidence on appeal in the courts provide a
useful guide to the exercise of the discretion. In that regard, in Akins v National Australia
Bank,3 Clarke JA said:
“The Court is empowered to receive further evidence upon the hearing of an appeal
(s.75A(7) of the Supreme Court Act 1970) but pursuant to subs (8) of that section may
not receive further evidence after a trial on the merits ‘except on special grounds’.
Although it is not possible to formulate a test which should be applied in every case to
determine whether or not special grounds exist there are well understood general
principles upon which a determination is made. These principles require that, in
general, three conditions need be met before fresh evidence can be admitted. These
are: (1) It must be shown that the evidence could not have been obtained without
reasonable diligence for use at the trial; (2) The evidence must be such that there must
be a high degree of probability that there would be a different verdict; (3) The evidence
must be credible.”4
[13] The new evidence or information Mr Reihana seeks to have us admit or take into
account on appeal is evidence or information that was available to Mr Reihana at the time the
matter the subject of this appeal was heard by the Senior Deputy President. Moreover, the
new evidence or information is not sufficient to lead to satisfaction that there are exceptional
circumstances as required by s.394(3) of the FW Act for allowing him a further period for the
making of his unfair dismissal remedy application. In the circumstances, we decline to admit
or take into account Mr Reihana’s new evidence or information.
[14] We are not persuaded the Senior Deputy President made an appealable error in his
decision to refuse Mr Reihana an extension of time for the making of his unfair dismissal
remedy application.
[15] Mr Reihana was dismissed shortly before Christmas 2012 and given pay in lieu of any
outstanding notice of dismissal required to be given to him. We were not referred to any
authority precluding Mastercare giving Mr Reihana payment in lieu of notice. Further, the
Senior Deputy President took into account Mr Reihana’s application to the QIRC and the
period within which it was made but did not consider that an exceptional circumstance. That
finding was reasonably open to his Honour. The absence of a specific reference to the QIRC
website in his Honour’s decision is of no consequence. In addition, under s.394(2)(a) of the
FW Act an unfair dismissal application must be made within a certain period after the
[2013] FWCFB 4960
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dismissal took effect. The Senior Deputy President considered Mr Reihana’s delay between
him receiving the advice about his application to the QIRC and him making his unfair
dismissal remedy application to the FWC but found no meaningful explanation was provided
for the delay and no exceptional circumstances were evident. Those findings were also
reasonably open to his Honour.
Conclusion
[16] Mr Reihana has not established that the Senior Deputy President’s decision involved a
significant error of fact and, in the circumstances, we do not consider it is in the public
interest or otherwise that we grant him permission to appeal. Mr Reihana’s appeal does not
raise matters that attract the public interest in granting permission to appeal. We refuse
Mr Reihana permission to appeal and, to the extent necessary, dismiss his appeal.
SENIOR DEPUTY PRESIDENT
Appearances:
T. Reihana appeared on his own behalf.
N. Cohen for Mastercare Highrise Cleaning Services Pty Ltd.
Hearing details:
2013.
Sydney:
July 30.
Endnotes:
1 Mr Toni Reihana v Mastercare Cleaning Services, [2013] FWC 3216.
2 [2010] FWAFB 9963.
3 (1994) 34 NSWLR 155.
4 Ibid at 160.
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